This post was written by Paul Whitaker from legal firm Moore Blatch.

Our Employment team is witnessing increasing issues with employees circumventing (innocently or deliberately), their non-compete / solicitation clauses by using LinkedIn, or any other social media.

This is a real issue for any employer that considers a non-solicitation clause in a contract of employment as watertight. Are contacts and followers on social media sites like LinkedIn, Facebook and Twitter confidential information belonging to the employer? 

Employees often argue that these have become personal and/or are in the “public domain” and not protected by confidentiality or covered by restrictive covenants.

Few cases have come before the court and none have reached trial, so the court’s attitude to protecting confidential information on social media sites is still unclear.

However, a helpful indication of the court’s attitude might be illustrated by the case of Penwell Publishing Ltd v Ornstien [1]. Here, the court found that a contact list maintained in Outlook on the employer’s computer system was the property of the employer and could not be copied or removed in its entirety by the employee for use outside his employment after the employment came to an end.

In principle, there’s no reason why this should not apply to contacts on LinkedIn or followers on Twitter, but the courts will be influenced by the degree to which the employer has made the position clear in its contract of employment and/or social media policy.

In the 2013 case of Whitmar Publications Ltd v Gamage [2] the court found that LinkedIn groups had been created for the benefit of the employer but had been used as a source of emails to distribute a press release after employment had ended in order to promote the former employees rival business.  The court granted an interim injunction providing Whitmar with exclusive control and management of the LinkedIn accounts.

Also, the Penwell case suggests that where these contacts have been built up in the course of employment for the purposes of carrying out the job and been stored on the employer’s computer system, that they belong to the employer.

We would, however, recommend that an employer has a clear Social Media Policy in place that deals with the question of ownership of social media contacts.

In the absence of agreement, the social media account belongs to the person who set it up. So, if it’s left to the employee to set up the account, they own the account and control the password and arguably also the associated contacts.

An employer therefore needs to be proactive and make it a condition of employment that the employee only uses an official company social media account and acknowledges that the employer owns the account and the contacts and has access at all times and is allowed to change account names and settings.

An employee should also be obliged to co-operate in handing over social media accounts created in the course of employment for the purpose of promoting the employer’s business to the employer at the end of employment.  Restrictive covenants such as non-solicitation, non-dealing and non-compete should make specific reference to social media contacts and what is meant by a social media contact should be defined in the contract of employment.